Volino v. Progressive Casualty Ins. Co. et al.

This website has been set up because the Court in charge of this lawsuit has certified this case as a class action, and this website is to inform the members of the Class with regular updates on the case. You were identified as a possible member of the Class. The Court in charge of this case is the United States District Court for the Southern District of New York. The case is Dominick Volino et al. v. Progressive Casualty Ins. Co. et al., Case 1:21-cv-06243-LGS.

The purpose of this website is to inform you about this lawsuit, the certification of the case as a class action, and your legal rights and options in this settlement.

This class action (the “Class Action”) alleges that Progressive Advanced Ins. Co., Progressive Specialty Ins. Co., Progressive Max Ins. Co., and Progressive Casualty Ins. Co. (collectively referred to as “Progressive” or “Defendants”) systematically paid their insureds less than the actual cash value of their vehicles for total loss claims, in breach of Progressive’s policies. Plaintiffs assert that Progressive did this by basing the compensation for insureds’ total loss claims on valuation reports that applied Projected Sold Adjustments, which Plaintiffs allege are improper. In addition to their breach of contract claim, Plaintiffs also assert claims on behalf of insureds and third-party claimants alleging deceptive practices in violation of New York General Business Law (“GBL”) § 349 and seek a declaratory judgment that Progressive’s application of Projective Sold Adjustments violates Regulation 64

The Long-Form Notice, Complaints, Class Certification Order and Opt-Out Form can be found under the Documents section here.

In a class action, one or more people called “Class Representatives” file a lawsuit on behalf of other people who have similar claims. This avoids the necessity for a large number of people to file similar individual lawsuits and enables the court system to resolve similar claims in an efficient and economical way.

On July 27, 2021, the first of two related class actions was filed against Progressive in United States District Court for the Southern District of New York. On April 8, 2022, the related class actions were consolidated. Plaintiffs filed a Consolidated Amended Class Action Complaint on April 15, 2022, asserting claims for breach of contract and violation of GBL § 349, and seeking a declaratory judgment that Progressive’s application of Projective Sold Adjustments violates Regulation 64. Defendants sought to dismiss the Class Action, but the Court denied Defendants’ motion and allowed the Class Action to proceed. On November 17, 2022, Plaintiffs filed a motion for class certification. After briefing on Plaintiffs’ motion for class certification, the Court granted the motion on March 16, 2023.

The Class Representatives seek to recover money to compensate members of the Classes for the alleged underpayment of their total loss claims, as well as pre- and post-judgment interest. The Class Representatives are only challenging application of the “projected sold adjustment” as part of the valuation process. The Class Representatives are not contesting or challenging any other aspect of the valuation process. If you wish to challenge an aspect of the valuation process other than application of a “projected sold adjustment,” you should opt out of the Classes and separately file your own claim.

No money or benefits are available now because the Court has not yet decided whether Defendants did anything wrong, and the two sides have not settled the case. There is no guarantee that any money or benefits will be obtained. If they are, you will receive a notice describing how to receive a share of any recovery in which you may be eligible to participate.

If you received an email notice or a postcard notice in the mail, then Progressive’s records indicate that you qualify as a member of the Certified Classes.

You are a member of the Settlement Class if you receive Notice and Progressive’s records show that during the time period of July 28, 2015, to March 16, 2023, you were a New York resident and policyholder with Progressive or, during the period of July 28, 2018, to March 16, 2023, you were a New York resident who made a claim on another person’s policy with Progressive, and

1. You received compensation from Progressive for the total loss of your vehicle;
2. Progressive may have based the compensation on a valuation report prepared by Mitchell International, Inc.; and
3. That valuation report may have applied Projected Sold Adjustments to one or more of the comparable vehicles used to determine actual cash value.

If these criteria apply to you, you fall within the definition of the certified Classes.

The Court’s March 16, 2023 order certified a Breach of Contract Class and a GBL § 349 Class. The Breach of Contract Class includes “[a]ll persons who made a first-party claim (which was assigned a Progressive Company Code [that corresponds to one of the Defendants]) on a policy of insurance issued by any Progressive Group entity to a New York resident who, from July 28, 2015 through the date an order granting class certification is entered, received compensation for the total loss of a covered vehicle, where that compensation was based on an Instant Report prepared by Mitchell International, Inc. (“Mitchell”) and the actual cash value was decreased based upon Projected Sold Adjustments to the comparable vehicles used to determine actual cash value. “The GBL § 349 Class includes “[a]ll persons who made a claim (which was assigned a Progressive Company Code [that corresponds to one of the Defendants]) on a policy of insurance issued by any Progressive Group entity to a New York resident who, from July 28, 2018, through the date an order granting class certification is entered, received compensation for the total loss of a covered vehicle, where that compensation was based on an Instant Report prepared by Mitchell and the actual cash value was decreased based upon Projected Sold Adjustments to the comparable vehicles used to determine actual cash value.” The Court also certified four subclasses of each class, one for each Defendant. The Court appointed Plaintiffs Lukasik, Lippa, Plotts, Goodier, Costa, England, and Verardo as the Class Representatives for the Classes and Subclasses.

The Court’s order can be viewed here.

Class Members have the following two options:

1. Remain a Member of the Certified Classes. If you wish to remain a member of the Certified Classes, you are not required to do anything at this time.
2. Ask to be Excluded from the Certified Classes. If you do not wish to participate in the class action, you must send a letter requesting to be excluded postmarked no later than September 11, 2023.

If you meet the criteria to be a member of the Certified Classes and do nothing, then you will remain a member of the Certified Classes.

If you choose to be excluded from the Class (by stating in writing that you do not want to be in the Class in this lawsuit), you will not share in the benefits, if any, that members of the Classes may be entitled to as a result of trial of this lawsuit; and you will not be bound by any decision in this lawsuit favorable to Progressive.

If you request exclusion, you will have the right to pursue individually, at your own expense, any claim you may have against Progressive.

The deadline to exclude yourself has now passed.

By doing nothing, you are choosing to stay in the Class. If you stay in the Class, you are not required to do anything at this time. By remaining a class member, you are agreeing that the claims against Progressive will be determined on a classwide basis. As a member of the Classes, you will be bound by the outcome of this lawsuit. If the lawsuit results in a judgment favorable to the Classes, you would be entitled to share in the benefits of that judgment. If the outcome is favorable to Progressive, your rights will be determined by the decision rendered in this lawsuit, and you will receive nothing.

Yes. The Court appointed Plaintiffs Lukasik, Lippa, Plotts, Goodier, Costa, England, and Verardo as the Class Representatives for the Certified Classes. The Court appointed the law firm of Carney Bates & Pulliam PLLC, referred to as Class Counsel, to represent you and other members of the certified Classes. If you have any questions for Class Counsel, you may direct those to the address provided below.

CARNEY BATES & PILLIAM PLLC
519 W. 7th ST.
Little Rock, AR 72201
www.cbplaw.com

You do not need to hire your own lawyer because Class Counsel is working for you. You are welcome to hire your own lawyer at your expense. If you hire a lawyer to speak for you or to appear in Court, your lawyer must file a Notice of Appearance.

Complete copies of public pleadings, Court rulings and other filings are available for review and copying at the office of the Clerk of the Court for the United States District Court for the Southern District of New York, 500 Pearl St, New York, NY 10007 between 8:30 a.m. and 5:00 p.m., Monday through Friday, excluding Court holidays. Additional information is also available on this website, or by contacting Class Counsel at the address provided above. The Long-Form Notice, Complaints, Class Certification Order and Opt-Out Form can be found under the Documents section here.

Please do not contact the court, the clerk’s office, defendants, or defendants counsel to ask questions about this class action. They cannot answer any questions of discuss the class action.